The Internet Is For Baseless Legal Threats: Popehat, Greenfield And Volokh Triple-Streisand Edition!

from the often-more-entertaining-than-porn,-the-other-thing-the-net-does-well dept

It has long been stated that the Internet is for porn. And while that's never really going to change, it also appears that the Internet has another purpose: baseless legal threats. Something tends to get lost in the ether(net), stripping away many people's ability to think clearly when confronted with criticism. This isn't necessarily a new thing, but we do seem to be "enjoying" a spike in confrontational (but baseless) legal threats.

Here's another story to add to the corpus asshattus of baseless legal threats. The very brief back story: A little over two years ago, The Volokh Conspiracy and Scott Greenfield's Simple Justice blog covered the story of a certain Norman Golb, a University of Chicago professor who found himself tangling with Lawrence Schiffman, the head of Judaic Studies at NYU, over the origins of the Dead Sea scrolls.

These two academics went head-to-head, attacking each other at various internet locations. Norman Golb's son, Raphael, also stepped into the fray, creating more than 50 aliases in an effort to emulate a groundswell of support for his father's viewpoint. Then he went one step further, impersonating Schiffman and sending emails to NYU students and staff suggesting he (as Schiffman) had committed plagiarism in one of his articles.

The end result: Raphael Golb was handed an indictment for identity theft, impersonation and harassment. All of this over an academic pissing match.

Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.

Dr. Schiffman's name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.

Please confirm that within five (5) work days of the date of this email the following will occur:

1. Complete removal of the blog material; 2. Removal of index entries on search engines; 3. Cancellation of fraudulent email accounts; 4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.

We will need your certification as to all efforts made to expunge the material.

I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.

I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.

I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb's fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.

The e-mail from Mr. Rieders of course offers no explanation of how this is a "criminal posting[]," because of course it isn't. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.

I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer's argument requires showing the entirety of the letter — both the particular language that the letter included ("criminal postings," the demand for "[c]omplete removal of the blog material," the demand for "[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him," and so on) and what the letter didn't include (any specific explanation for why the material would indeed be legally actionable).

In any event, I'm happy to certify that no efforts whatsoever will be made to expunge the material in that blog post; my response to Mr. Rieders and Prof. Schiffman will be a link to this post.

Eugene is much nicer than I am. Had he not calmly and succinctly explained the email's massive failing, I would have been constrained to respond, bite me. I am happy to say that because of Eugene's parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene's response, and add, "what he said."

I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and write at a blog called www.popehat.com regarding various legal matters, particularly including free speech and legal threats based on online comment.

Today I noticed two posts — one by Eugene Volokh, and one by Scott Greenfield — discussing legal threats you have sent.

Are you willing to answer questions about those threats? I am planning on writing a post about them, and would like to solicit your position first.

My questions are these:

1. Did you actually draft this threatening email yourself, or was it some underling?

2. Did you actually select the recipients of the letter, or were the targets selected by some automation, or by a non-lawyer?

3. I ask #2 because I am attempting to grasp, in looking at Professor Volokh's post about the Golb matter (http://www.volokh.com/2013/01/29/no-first-amendment-violation-in-e-mail-impersonation-case/), how Professor Volokh's analysis of a published appellate case could possibly be actionable in any way, let alone "criminal."

4. What is your theory on how a discussion of the allegations against Mr. Golb — including allegations that he wronged your client, Mr. Schiffman — could be actionable or "criminal"? Is it your position that your theory has any support in any legal authority accessible to the general public?

5. I recognize that you would not be so unprofessional as to disclose your confidential communication with a particular client. Therefore, let me frame my next series of questions as follows: Are you familiar with the Streisand Effect? Is it your practice to advise clients, before sending out extravagant legal threats demanding the removal of information about them from the internet, about the risks posed by the Streisand Effect — the risk that your threats will result in the challenged content being seen by several orders of magnitude more people? Is it your practice to advise clients that there may be particular risks in threatening bloggers with popular blogs known for being vigorous supporters of the First Amendment?

6. Do you believe that your representation of Mr. Schiffman in the course of making these threats falls within the standard of care for attorneys in your community? Any response you would like to offer would be appreciated, and will be incorporated into my post commenting on your threats.

Thanks, Ken White

White received this in response:

I have no idea what you are talking about, who you are or who you represent. Please therefor, [sic] do not respond again [sic]

White and a couple of his readers went digging for who was actually behind these threats and found, unsurprisingly, that it was someone at the Rieders Travis law firm, as all the emails were sent from the same originating IP address. It seems rather unlikely that the same person who sent the original threatening emails would have "no idea" what Ken was talking about. Unless, of course, someone was generating fake email addresses and impersonating members of the Rieder Travis legal team, but that would just be insanely ironic considering the original subject matter.

The implications of these baseless legal threats for the threatening party are potentially huge. Both Ken White and Scott Greenfield mention the Streisand Effect. Apparently, Cliff Rieders (the person purportedly sending the ill-advised emails) is unfamiliar with the term. If he was, perhaps he wouldn't have bothered irritating this trio of bloggers, because what he's unleashing is going to do quite a bit of harm to his client's interests.

White and Greenfield both have updated their posts to include the news that the Supreme Court in California has granted review of Golb's conviction. The order granting leave to appeal is dated March 11th. The threatening emails arrived on March 13th. This order directly contradicts Cliff Rieders' statement in the last paragraph of his email.

I am advised that Mr. Golb has been convicted and appeals denied.

It certainly looks as though someone's trying to whitewash the web in advance of an appeals hearing. White theorizes that Rieders is blasting out identical emails to anyone who turns up in a rudimentary Google search for Schiffman and Golb. If this was a targeted takedown effort, Rieders likely would have avoided these blogs, choosing to go after more complicit writers. Unfortunately for Rieders and his client, he threatened the wrong people and his clumsy efforts are being debated in the court of public opinion. On top of that, the posts he wanted removed will remain live. Now, he and his client will be linked to unflattering stories about baseless legal threats, leading to even more bloggers pushing back against the takedown attempts.

It's the Streisand Effect and the only way to win is not to play. Many participants aren't even aware they're playing until it's too late. A full withdrawal of the threats, along with an apology, is about the only way to limit the damage. But, if the past is any indication, this will probably get a lot worse for Rieders (and more entertaining for the rest of us) before it gets any better.

Evidently, Rieders, et al. also thought the internet was only for porn because no one who knew his ass from a hole in the ground would fire off random nastigrams to not one, but *three* law professors. Thanks to the dumbassery of the Rieders firm, the entire internet will be laughing at them in no time just like Barbra Striesand.

Not to mention that at some time in the process of appeals, a new record of intent to limit damage by removing any evidence will show up as attempt to change it. I don't think the courts look kindly on changing evidence to be something it isn't.

Understand I am not in the legal profession but a record of the demand to remove what could be found with a Google search and have it documented and tied to what they are attempting to white wash can not be good.

Re:

There's always the possibility that this person has NO IDEA what he's doing. He also asks for "index listings on search engines" to be removed along with "cancellation of fraudulent email accounts."

Bloggers writing about the case would be unable to do anything about the index listings and probably aren't harassing Schiffman via fraudulent email accounts, especially not legal experts like the ones named.

Re:

What I gather from this

"creating more than 50 aliases in an effort to emulate a groundswell of support" is something a lot of us have done as tweens having fun on the internet, getting caught up in how upset we can make others online without realizing how much effort we put into it.
On the other hand, impersonating someone to try to ruin their professional career is where I think the line was crossed. All those legal threats seem like a waste of time, they should just settle with arbitration or in court.

Re: What this is about

I think this guy was railroaded. The impersonations or "confessions" were crude, designed to provoke a scandal concerning some pretty serious stuff in the academic context. And they did just that. But the subject matter is too specialized and weird for most of us to really know much about, so we write it off as a crime.

Re: Re: What this is about

But the subject matter is too specialized and weird for most of us to really know much about, so we write it off as a crime.

Firstly, I don't know that a lot of the people reading about this are thinking it's a crime. That certainly wasn't my first thought. Secondly, we don't need to understand the subject matter to know that creating false identities to try to smear someone is sleazy.

Confusion

Re: Re: Re: What this is about

[W]e don't need to understand the subject matter to know that creating false identities to try to smear someone is sleazy.

The Tablet Mag article linked by "Hot Corn" above states:

In 1993, Avi Katzman, an Israeli journalist, published an interview in Haaretz in which he pushed Schiffman on the similarities between his work and Golb’s previous writings.

“But you also, in different articles that you published, have not hesitated to appropriate portions of Golb’s theory without acknowledging as much, and without giving him appropriate credit,” Katzman asserted.

“This isn’t the issue,” Schiffman responded. “There’s no innovation in Golb’s theory. … Golb can say what he wants... Does he think that he wrote the Bible?”

Some of the commentators on the various sites discussing this scandal don't seem to get it. If Schiffman had been seen molesting a child, would it have been sleazy to create "false identities" and send out a confession of child molestation in his name? Would that be a "smear"?

Either some of the commentators don't feel that plagiarism is a serious issue, or they assume that Katzman's accusations of plagiarism are false, and hence a "smear."

Re: Re: Re: Re: What this is about

Either some of the commentators don't feel that plagiarism is a serious issue, or they assume that Katzman's accusations of plagiarism are false, and hence a "smear."

Missed this part. I have no idea about the veracity of the claims, and didn't intend to imply that I think they're false. But from what I've read, the manner in which they were delivered was underhanded.

Re: Re: Re: Re: Re: What this is about

From what I've read on the trial site, the prosecution was allowed, something like 170 times during the trial, to suggest, and elicit testimony, that Golb made "false accusations," while Golb was blocked from introducing any evidence of the truth of the accusations, because "neither good faith nor the truth is a defense."

In that light, I'm not so sure I would blame someone for playing an underhanded trick on a perpetrator of underhanded tricks who deserves it...

Re: Re: Re: Re: Re: Re: What this is about

Golb was blocked from introducing any evidence of the truth of the accusations, because "neither good faith nor the truth is a defense."

My understanding is that's not supposed to happen in the US; truth is an absolute defense against defamation. Do you have a link to the site? Yes I googled but lots of news about the trial and I didn't see any official site.

In that light, I'm not so sure I would blame someone for playing an underhanded trick on a perpetrator of underhanded tricks who deserves it...

I don't know, that's kind of a "he started it" morality. Just because someone has wronged you doesn't make it ethical to commit what would otherwise be unethical acts.

I agree your argument is interesting, but tricks of this sort are regularly used by folks like the Yes Men to out the alleged unethical conduct of others without people starting an Internet witch hunt against the tricksters.